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December 14, 2004

The Role of the Death Penalty

Many that live deserve death. And some that die deserve life. Can you give it to them?

I haven't followed the Peterson trial beyond the very basics, so I have no idea if the jury did well or poorly in convicting Scott Peterson and recommending the death sentence. I won't let that stop me from using the topic as an opportunity to talk about the death penalty, however.

It is my belief that the death penalty is not an appropriate power to give the state. It gives the state a power unnecessary for the pursuit of its rightful goals. It is irreversable. It doesn't provide a deterrent to criminals, and encourages worse crimes. And it costs our criminal justice system time, money, and credibility to deal with it.

It may seem odd for me to argue that the state shouldn't have the ability to execute someone when I've already conceded that the state does hold precisely that power: ultimately, if you don't go along with the state, it has the power (and arguably the right) to kill you. That having been said, there is a difference between an agent of the state killing someone in the pursuit of his duties and the government imposing death as a punishment for certain offenses against the state. Police must have the ability to use force, including deadly force when appropriate, to perform their duties. Without that ability, the people can violate the laws with impunity and you have anarchy. Once a person has been taken into custody and is standing trial for their offense, there is no requirement to use lethal force. I would argue that the state should not be permitted that option either. As my friends at Samizdata have noted many times, the state is no one's friend. Regardless of how benign the intentions behind any government, the government is ultimately a tool of force and violence, even if directed to good ends. And because the state does marshal such a great deal of power, it is all too easy for the corrupt among us to use that power for bad aims. The state should be given only the minimum tools necessary to accomplish its aims. By removing the death penalty from the state's toolkit, we eliminate the massive potential for abuse inherent in such a powerful tool.

The death penalty is unique in that there is no way to reverse it when a mistake is made. A prisoner may spend 20 years in jail after having been wrongfully convicted, but at least he is still alive to be released and the state can (and should) provide some compensation for the error. If someone's property confiscated due to error, that property can be returned to them and restitution made. But if the state executes you, all the money in the world won't bring you back if it turns out you're innocent. I think it is probable that somewhere in the United States the state has already executed an innocent man, although I suspect it is far less common than some death penalty opponents would have us believe, as nobody has yet found a documented case of an innocent man being executed. Nonetheless, I see no reason to take the chance even if it hasn't happened yet.

Laws do provide a deterrent effect on people, but there is a limit to how much laws can do. For those crimes the death penalty normally addresses, I'm dubious how much deterrent value it provides. For example, murder is a common rationale for the death penalty, which seems logical enough on its face; kill someone and the state kills you. But does the threat of death really significantly deter anyone from killing? There are two basic murder scenarios: premeditated and acts of passion. If someone is willing to kill someone else badly enough to plan that murder out, how much more likely is he or she to give up because of the death penalty as opposed to life without parole? Most criminals operate on the assumption they won't get caught anyhow, and anyone planning out their crime is going to plan on getting away with it. That leaves acts of passion, which by definition are unlikely to be deterred by anything. If your temper is so bad that you're willing to kill someone when it breaks, I find it difficult to believe that the knowledge you could face the death penalty is likely to somehow snap you out of your murderous rage in time to save your victim. I believe that these issues would pertain to any other crime for which the death penalty could be applied. It doesn't seem likely the death penalty would provide any additional deterrent effect to prevent crime.

But if a criminal does think of the death penalty, it's as likely to drive him to commit worse crimes as to stop what he's doing. If a criminal knows he's committing a crime that carries a death penalty sentence, he has good reason to kill anyone who has knowledge of his crimes. He's already facing the threat of death, so why wouldn't he kill any witnesses in order to reduce his chances of going to trial? Since the death penalty can only be applied once, as soon as a criminal crosses that line it perversely incentivizes the criminal to commit worse crimes.

Finally, the death penalty is incredibly costly. Because we rightly do not want to execute an innocent man, we have placed a number of important safeguards in the system to provide the innocent many opportunities to escape a wrongful death penalty sentence. These options all require court time, which means at least a judge, a clerk, and two lawyers, all of whose time costs money and who are rarely the only involved parties. Working a death penalty case through that system amasses great costs that the state must ultimately pay, even when the accused is found guilty. But the costs come not only in money, but in prestige. When someone on death row is found to be innocent, it undermines faith in our legal system, because people realize that the potential was there for an innocent person to be executed (even though the system did work, releasing the person before that could come about). This costs us the key currency of any popular system: the perception of legitimacy. Our legal system is accepted because people believe, by and large, that it works. If people stop believing that, the system might continue for some time, but it would become more and more ineffective as contempt for the system spread through the populace. Ultimately, a lack of confidence would bring the system down, as it should. But this is a catastophic method of resolving a problem that could be resolved far more easily.

I don't doubt that many criminals are well-deserving of a warm seat in Hell. But it's not the place of the government to give it to them. It's time to end the use of the death penalty.